In today’s world, it is almost impossible to not have some sort of digital trail. A digital trail may include music, emails, frequent flyer points, family photos, videos, movies, information stored in the cloud and, of course, passwords. Some of these items have real value, such as a brokerage account or bitcoin, and some of them may merely have sentimental value, such as family vacation videos or favorite songs.
The biggest estate planning issue with these items is that they are easily hidden or forgotten. Agents under a power of attorney or a personal representative under a will may not have an easy way to locate and access these items. Many companies, such as Apple, Amazon, Delta Airlines and Marriott, have strict procedures in place with what to do if a user passes away or is deemed incapacitated by a court of law. Procedures in these cases range from sending a simple letter with a death certificate to the appropriate party, to requiring a probate or guardianship court order specifying what access is granted and to whom. Some companies have no procedures in place at all and handle each issue on a case-by-case basis. Many times, this all ends up in a digital bureaucracy where neither side knows exactly how to proceed.
Federal and Florida law offers some help in these situations, but not always. There are numerous laws on computer fraud and abuse as well as many laws on privacy. In addition, individual companies may modify the general rule through the use of user agreements and additional policies. In 2016, Florida enacted Chapter 740, a new law which became known as the law of Fiduciary Access to Digital Assets. This new law developed the rules and procedures for allowing personal representatives and trustees to access digital assets and electronic communications. In part II of this blog, we will review some of the details of this Florida law.
Even with new laws in place, many companies allow the user, while alive, to deny access to digital assets or accounts upon death. Perhaps the most well-known is Google’s Inactive Account Manager. Using this procedure, a user can set their account to notify someone else or multiple people upon a set amount of inactivity by the user or even cause the account to be deleted after a set amount of inactivity and notice. This would allow the user’s YouTube views, g-mail, contact list and the like to disappear. This is commonly known as allowing your account to self-destruct. Many other social media companies have or are developing similar abilities.
When families deal with suicides or other major tragedies, it is often in the digital landscape that they search for answers. Family members and close friend often would like to read the e-mails or view the websites that a person went to prior to some incident or event. Today, users can sometimes usually decide on their own whether or not such information should be obtainable by others or if such data should disappear forever. Both Florida law and federal law protect deleted data absent some showing of criminal or fraudulent activity.